Libby—Ninth Circuit overturns $8 million asbestos verdict against BNSF

The Ninth Circuit overturns $8 million asbestos verdict against BNSF Railway Co., concluding Montana law does not allow strict liability for transporting asbestos-laced vermiculite through Libby, Montana (Associated Press).

In a decision issued Tuesday, a three-judge panel said Montana’s common carrier exception shields BNSF from strict liability claims linked to vermiculite concentrate mined by W.R. Grace & Co. The court’s reasoning is set out in the Ninth Circuit opinion. The ruling reverses a 2024 trial court judgment that awarded $4 million each to the estates of Thomas E. Wells and Joyce H. Walder, former Libby residents who died in 2020 from mesothelioma.

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Also, the case was described as the first community-exposure asbestos lawsuit over BNSF’s Libby operations to proceed to trial. Still, hundreds of similar personal injury claims have been filed over the years.

Why the Ninth Circuit overturned the BNSF asbestos verdict?

The U.S. Court of Appeals for the Ninth Circuit focused on how Montana law treats “abnormally dangerous activities” and when strict liability can apply. A 2020 Montana Supreme Court decision in BNSF Railway Company v. Eddy held that transporting vermiculite concentrate qualified as an abnormally dangerous activity. At the same time, that ruling recognized the common carrier exception, which bars strict liability when a company performs an activity pursuant to its public duty as a common carrier.

U.S. Circuit Judge Morgan B. Christen wrote that BNSF’s handling of the asbestos-containing vermiculite fell squarely within that exception. Meanwhile, the court said federal law required the railroad to transport the material from the Libby mine to its local railyard and then move it onward to destinations across the country.

Montana’s common carrier exception and strict liability claims

The plaintiffs argued BNSF should still face liability because asbestos dust allegedly accumulated along the tracks and in BNSF’s railyard. The panel rejected that view. It found that the dust escaped from rail cars during the required transportation process. “The fact that the dust accumulated gradually along the railroad tracks and in BNSF’s railyard, rather than spilling abruptly, does not alter our analysis,” the court wrote, emphasizing that the release occurred in the course of shipment.

Separately, the panel also declined the estates’ request to certify a question to the Montana Supreme Court about whether the common carrier exception applied, stating that the Eddy decision already provided clear guidance.

Reactions and what happens next in Jackson Wells et al. v. BNSF Railway Co.

Kevin P. Parker of The Lanier Law Firm, representing the estates, said the plaintiffs respectfully disagree with the ruling and believe the court misinterpreted Montana law. In addition, he said the legal team is consulting with clients and considering possible next steps, including further appeal.

BNSF declined to comment.

Judges Consuelo M. Callahan, Morgan B. Christen, and Andrew D. Hurwitz sat on the panel. The case is Jackson Wells et al. v. BNSF Railway Co., No. 24-4802, before the Ninth Circuit.

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